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Grounds for contesting a will

There a number of ways to contest a will and here we give details on each of the grounds for contesting a will.

Reasons for contesting a will:

  • lack of “testamentary capacity”;
  • lack of valid execution;
  • lack of knowledge and approval;
  • undue influence;
  • fraudulent wills and forged wills; and
  • rectification and construction claims.

 


Lack of testamentary capacity

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow which states that, for a will to be valid, a person must:

  • understand that they are making a will and the effect of that will;
  • know the nature and value of their estate;
  • understand the consequences of including and excluding certain people under their will; and,
  • not be suffering from any ‘disorder of mind’ which may influence their views. For example, if the testator made gifts which they would not have made had they not been suffering from that disorder.

Although the law has developed since the case of Banks v Goodfellow, the basic principles remain the same. In a will dispute any of the above concerns would be the starting point for challenging a will on the grounds of a lack of testamentary capacity.

Lack of valid execution

In a claim for lack of valid execution, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837):

  • The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
  • It must appear that the testator intended by their signature to give effect to the will.
  • The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
  • Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
  • The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.

There are also strict rules about who can and cannot witness a will.

Lack of knowledge and approval

A person must have knowledge of, and approve of, the content of their will. They must know that they are signing a will, and approve of its contents.

It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.

For instance, where there is a substantial gift in the will to a person who helped prepare it.

Contact our team of solicitors today to found out if you are eligible to make a claim to dispute a will or if you need advice defending against a claim. 

Undue influence

To prove that a person was unduly influenced, coerced or under duress when making a will you must show ‘actual undue influence’.

Unlike some classes of gifts made during lifetime, the law does not automatically presume that, because one person in a position of trust has received assets from another person, it is as a result of undue influence.

The evidence needed to prove undue influence must be of a high standard, to the extent that there is no other reasonable theory to explain the terms of the will.  However, recent case law seems to be marking a sea change with the court willing to accept arguments that people have been unduly influenced.

Our team have a proven track record in such cases of undue influence and represented the successful claimants in the reported case of Re Edwards [2007] EWHC 1119 (Ch).

If you believe that a person has made a will as a result of significant coercion by another person or you are facing such a claim, our will dispute solicitors can help. We have a proven track record in cases of this nature. 

Fraudulent wills and forged wills

You are able to contest a will if you believe it was forged or fraud has taken place.

For example, if Alan prepares a will in Barbara’s name and forges Barbara’s signature so that her estate is left to him on her death, the will would be invalid as a result of the forgery.

Alternatively, if Barbara intends to benefit Alan in her will but Carol lies to her by stating that Alan has stolen money, and then Barbara reacts by removing Alan from her will, the will may be invalid as a result of Carol’s fraud.

Our team of solicitors have expertise in dealing with fraudulent wills. Whether you are looking to make a claim or defend against one, our legal specialists are able to advise you on any type of fraudulent or forged will case you may have. 

Rectification and construction claims

A will may be rectified where it fails to carry out the testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the will to understand the testator’s instructions. When a will is negligently drafted this is often the first port of call before making a claim for professional negligence.

We can advise you on negligently drafted wills, claims for rectification of a will or claims regarding the construction of a will.

A construction claim may be brought if the words in a will are unclear or ambiguous. In this case the court is asked to determine the meaning of the words used in the will.

Whatever the issue, our team has the experience necessary to help you. 

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